Down To Business: Tech Patents Revisited: Alternative Approaches

The fact that patent reform has repeatedly died in Congress shows there are no pat answers. But here are a few strong ideas.

My recent column arguing for why the software patent system needs fixing drew a range of reader responses, none of them timid. The chief critique: Offer solutions, don't just whine about the problems. So here are some perspectives, partly based on the feedback I received.

>> Adhere to copyright protection, which presents a higher bar for plaintiffs than does patent protection. To succeed with a software copyright action, a plaintiff must establish that the defendant copied the work in question. There's no infringement if defendants can show "there was independent creation of the work," nor if the use in question was "the only way for putting a particular idea into practice," according to intellectual property law firm Ladas & Parry LLC. Furthermore, copyright protection "is available only for a particular expression of an idea, not for the idea itself"--not for procedures, methods of operation, concepts, and principles, the stuff of thin software and business process patents.

One online commenter on my column thinks this higher standard makes good sense: "I have spent a few decades in software development and always thought software patents are wrong. We put a copyright notice in our code to keep others from taking our code and using it, but they are free to write their own code to do the same thing. Otherwise, there would be only one program for each application. If the first person to write a program to update an account balance for a deposit or withdrawal had a patent on it, where would banking be today?"

Observed another commenter: "Software methodologies are simply logical manipulations of code. Every possible logical manipulation of code achieves a function that can be achieved through an endless variety of other coding methods. To patent the functional goal ... is like letting someone patent 'getting from New York to Boston' by presenting a detailed diagram of a route from New York to Boston."

>> Find a middle ground. Alan Heimlich, a patent attorney with Peloquin PLLC, suggests a way to rein in both the trolls (the firms that buy up patents in order to sue alleged infringers in friendly courts) and tech giants such as IBM, Microsoft, and Cisco (which hoard patents to make a few license bucks and prevent startups from entering their markets). Heimlich's proposal: If you're not "practicing" the invention, you can't sue for damages.

>> Get the U.S. Patent and Trademark Office some help in distinguishing between good and bad tech patents. It's not just a matter of throwing more people and money at the problem, but most agree that the USPTO is way over its head in terms of manpower (nearly 6,000 examiners assigned to 1.2 million applications) and expertise. One promising initiative, modeled on a Japanese program, was the Peer To Patent community review project, which enlisted the informed public to share knowledge and expertise with patent examiners. However, that two-year pilot program was suspended in June pending a review of its effectiveness and additional funding.

>> Act (finally) on some version of patent reform. Various bills have died in Congress over the past several years. Among the provisions now on the table: Require that patent-infringement suits be brought only in states where the defendant has a physical place of business rather than where the courts are known to make favorable decisions; and set stricter rules for what constitutes "willful infringement" and on the amount of damages that can be awarded.